By Honey Tan Lay Ean, Chairperson of the Bar Council Family Law Committee
Bruce Doyle | Malathi Das | Kiranjit Kaur Dhaliwal | Honey Tan Lay Ean |
Tracing of Matrimonial Assets in Malaysia and Abroad
26 Sept 2014 (Friday) | Breakout Session 6, Stream A
Taming Sari 3
Matrimonial proceedings are not just about divorce, judicial separation, custody and maintenance. One of the hottest contested areas in divorce or judicial separation proceedings is in the distribution of matrimonial assets.
Generally, matrimonial assets are assets acquired during the subsistence of a marriage. This includes monies in bank accounts and the Employees Provident Fund (“EPF”), unit trusts, shares in companies, houses, land, apartments, and cars. In very limited circumstances, assets acquired before marriage and inheritance may form part of matrimonial assets.
The rising global middle class has added another dimension to the fight over matrimonial assets. There are increasing instances of matrimonial assets being kept abroad, whether they be in the name of individuals, or by corporations substantially owned and controlled by one party in a marriage — often without the knowledge of the other party.
So, how does a lawyer assist a client in tracing those matrimonial assets hidden away, especially when they are not kept in Malaysia?
In the session on “Tracing of Matrimonial Assets in Malaysia and Abroad”, Bruce Doyle from Doyle Family Law, Australia will outline how such matters are dealt with in Australia. His informative paper, “The Money has Gone to Australia — What Next?”, gives invaluable and practical information on how to gather the basic facts in the comfort of your office, using your computer. Unlike Malaysia, in Australia a great deal of information is easily obtained online, and free of charge. Mr Doyle marvels at how information technology is reshaping the legal profession — some of the information now available online was not available only a few months ago. In the “Reforming the Law” section, Mr Doyle shares his analysis of emerging trends and issues in Australian family law.
He notes that private investigators are rarely used in tracing matrimonial assets whereas forensic accountants are more often used when claims on businesses are made, especially when the businesses are of a significant size. He also noted that businesses of a modest size are often valued, if only to show that some claims made by parties are unrealistic.
Finally, he sets out the jurisdictional threshold in property matters in Australia, the advantages of choosing Australian property jurisdiction and the importance of making full and frank disclosure of ownership of assets so that the court can make fair and just orders. It is interesting to note a case he cited, where disciplinary action was taken against a lawyer who had been complicit in withholding information of a material change in his client’s circumstances which, if known, would have led the court to make a different order.
Malathi Das, who hails from Singapore — the Switzerland of the East — is another speaker in this session. She will outline the common tactics used by parties to move assets to third parties, sometimes with the use of false documents. Ms Das will speak about the importance of family law practitioners appreciating financial issues in the context of international law, and share information on the common challenges confronting domestic and cross–border assets and income tracing.
Kiranjit Kaur Dhaliwal, a Malaysian family law practitioner, will address the provisions in the Law Reform (Marriage and Divorce) Act 1976, the Divorce and Matrimonial Proceedings Rules 1980 and the Rules of Court 2012, which are used when tracing matrimonial assets. She will include a discussion on applications made to compel third parties to provide disclosure. Ms Kiranjit will address the efficacy of using professional valuers and accountants to ascertain the value of assets. She notes that once there is some disclosure, further information may be gleaned by studying bank accounts that may point to other undisclosed assets. Ms Kiranjit further notes that forensic accountants are helpful in providing analyses with the information provided to them.
While this session is aimed at family law practitioners, it will also provide an abundance of information and shared experiences that will be invaluable to lawyers who are involved in civil litigation, especially those practising in the area of insolvency law. This lively session will allow ample time for a question–and–answer segment, and interaction between speakers and delegates.
Honey Tan Lay Ean, Chairperson of the Family Law Committee of Bar Council Malaysia, will moderate this IMLC 2014 session.